Bastia Umbra wins its battle against gambling: no more slots in recreational clubs
(Jamma) – We propose the reflections of the Grassi law firm (Rossella and Alessandra Grassi – [email protected]) around the content of the AAMS Circular n. 2013/491/DAR/UD of 13 June 2013, on the subject of administrative sanctions for the installation of AWPs in premises not equipped with the required authorisations, where applicable.
- PREMISE.
The circular in question, as known, aims to provide a specific interpretation of the regulatory provision referred to in letter f-bis), of paragraph 9 of art. 110 TULPS, introduced by art. 1, paragraph 475, of the law n. 228 of 2012, according to which: "whoever, on the national territory, distributes or installs devices and devices referred to in this article or in any case allows their use in public places or places open to the public or in clubs and associations of any kind not equipped with the required authorisations, where provided, is punished with a fine of between 1.500 and 15.000 euros for each device".
The practice note cited, in summary, through an articulated exegetical reconstruction, arrives at affirming the following:
THE NEW SANCTION: the new sanction introduced by the aforementioned letter f-bis) refers to those conducts in which the gaming machine referred to in art. 110 TULPS, whether regular or irregular (as it lacks the necessary clearance, or does not comply with the characteristics and requirements for lawful gaming), is installed in places (public, open to the public, or in clubs or associations of any kind ), "not equipped with the required authorizations where required".
In other words, if the device is irregular, the sanctions of paragraph 9, from letter a), at lett. f, of the art. 110 TULPS, while if the gaming device is distributed, installed or in use, in a business without the necessary authorisations, where applicable, the new administrative sanction introduced by the aforementioned lett. f-bis);
THE INSTALLATION PREMISES OF THE 110 TULPS APPLIANCES: the circular deals with the issue of the installability of this type of equipment, highlighting the situation of those places where the game in question is played without the licenses referred to in articles 86 or 88 of the same TULPS.
Circathe scope of application of the art. 86 of the TULPS, the circular in question notes that the same article provides, in relation to gaming machines, the need for a license for their installation in commercial or public establishments other than those already in possession of other licenses referred to in the first or second paragraph (of article 86) or referred to in article 88, or for installation in other areas open to the public or in private clubs.
Hence, the circular under comment continues, <…the possibility of installing amusement and entertainment machines on the basis of the license pursuant to art. 86 concerns only premises open to the public which are not already subject to the police authorization pursuant to art. 88, as required by this provision “for the exercise of bets">>.
With regard, then, to the provisions of art. 88 TULPS (taking into account the provisions of article 2, paragraph 2 ter, of Legislative Decree no. 40/2010), the circular in question highlights that "… the subjects who carry out the exercise of bets (including the so-called "corners") can install amusement and entertainment machines, pursuant to art. 110, paragraph 6, of the Tulps, only in the presence of the police license pursuant to art. 88".
Therefore, the circular under comment continues, “…in the premises where the betting activity is carried out, amusement machines can be installed only if the entrepreneur is in possession of the police license referred to in art. 88".
But, above all, according to the circular:
"Therefore, the rule in question intended to provide for an express sanction also for the possible installation or use of AWP devices in premises where bets are carried out, without the police authorization pursuant to art. 88 of the Tulps";
with specific reference to the cc.dd. CTD (Data Transmission Centers), which <…in the event that a transmission center has requested the police authorization provided for by art. 88 and has received a refusal from the competent Police Headquarters, before imposing the sanctions it is appropriate to wait for the outcome of any administrative dispute (before the Lazio Regional Administrative Court), in the event that the interested party has challenged the refusal of the police.
In fact, in the presence of an activated administrative dispute, only following the ruling of the competent administrative judge can the hypothesis of "place open to the public not provided with the required authorization, where provided," be considered fulfilled in the specific case.
Otherwise, the centers that operate in the absence of police authorization (for example because it is not requested or where the denial provision of the Police Headquarters has become definitive) will suffer the sanction provided for by letter f-bis), where they allow the use of the devices envisaged by art. 110, paragraph 6, realizing the case of "places ... open to the public ... not equipped with the required authorizations, where provided>>.
- CRITICAL ISSUES FOUND WITH REGARD TO THE REGULATORY INTERPRETATION PROVIDED BY AAMS IN THE ABOVEMENTIONED CIRCULAR.
The illogicality of the interpretative solutions adopted in the ministerial circular under comment should be highlighted immediately.
However, before proceeding to examine the reasons for dissent from the technical solutions adopted, it appears necessary to premise that, as known, according to the orientation of the Supreme Court of Cassation (cf.. judgment no. 25170/2012 which follows the orientation traced by the SS.UU. civilians no. 23031 of 2 November 2007) "the interpretative circular is an internal act of the public administration which resolves itself into a mere interpretative aid and does not have any binding effect not only for the criminal judge, but also for the recipients themselves, since it cannot in any case be in conflict with the evidence of the data normative".
Having said that, let us come to the merits of the interpretative solutions adopted by the aforementioned Central Administration:
regarding the above point a): the circumstance that the new regulatory provision pertains to a conduct different from those already contemplated and punished by the aforementioned paragraph 9 of the art. 110 TULPS.
On this point, however, it should be recalled the circumstance that, in the event of installation of devices of the type in question in establishments lacking the public safety license pursuant to art. 86 TULPS, the application of an administrative sanction is already envisaged and, in particular, that contemplated in art. 17 up to, paragraphs 1 and 2, of the TULPS, from 516 to 3.098 euros.
This circumstance evidently involves a problem of concurrence of standards which should be resolved, bearing in mind the provisions of art. 9 of the law n. 689 of 1981, through the application of the special provision that the circular could well have identified, but which instead does not even consider;
about the point b): the statement, contained in the circular, according to which <…the possibility of installing amusement and entertainment machines on the basis of the license pursuant to art. 86 it only concerns premises open to the public which are not already subject to the police authorization pursuant to art. 88, as required by this provision “for the exercise of bets”>>, appears in line with the previous practice orientation provided by the various competent central bodies in relation to the specific matter.
The Ministry of the Interior, with note no. 557/PAS.18063.12001(1) of 17 December 2008 and the Ministry of Economic Development, with Resolution no. 6513 of 26 June 2007, have in fact clarified, in relation to the content of art. 86, paragraph 3, of the TULPS, which said PS license must be requested only by those who are not already in possession of one of the authorizations provided for by the first two paragraphs of the same article 86 (including bars, restaurants, taverns and amusement arcades), or by the subsequent art. 88 (in particular, betting collection agencies).
With this meaning, therefore, that if an operator is already in possession of the public safety license (for the collection of bets) pursuant to art. 88 TULPS, he certainly does not need to request the authorization pursuant to art. 86 for the installation of gaming machines.
Consequently, it is clear that the possibility of installing AWP devices, on the basis of the license pursuant to art. 86, it only concerns premises open to the public which are not already subject to the police authorization pursuant to art. 88, as required by this provision "for the exercise of bets".
But precisely on the fact that the license pursuant to art. 88 is valid only if issued "for the exercise of bets", it is worth recalling - as, moreover, is also provided for in the circular in question - the provisions of art. 2, paragraph 2 ter, of Legislative Decree March 25, 2010, n. 40, added during the conversion of the decree from Law 22 May 2010, n. 73, according to which "the art. 88 of the TULPS is interpreted in the sense that the license provided therein, when issued for commercial establishments in which the exercise and collection of public games with cash prizes takes place, is to be considered effective only following the issue to the owners of the same establishments of a special concession for the exercise and collection of these games by the Ministry of Economy and Finance - Autonomous Administration of State Monopolies".
The aforesaid regulatory intervention is motivated by the need to unravel any doubts regarding the interpretation, supported by some administrative judges, of the aforesaid art. 88, according to which the provisions with which the Public Security license requested by certain subjects without ministerial authorization are rejected, on the basis of the lack of the administrative concession title on the part of the same, are illegitimate.
In this regard, we highlight, among others, the position taken by the Council of State in the order issued as a precautionary measure, on August 26, 2009, according to which "the mere lack of a concession title does not appear, in itself, to inhibit the performance of the activity carried out by the appellant".
The aforementioned interpretative rule essentially reiterates that for the issue of the corresponding police authorization it is essential that the interested operator already holds a concession for the collection of public games, as an unfailing legal prerequisite, and, in any case, denies the possibility of exercising the activity in question on the basis of a Public Safety license only.
Let us give a concrete example: the owner of a VLT room (for the installation of which, as known, the ownership of the license pursuant to article 88 of the TULPS is required), cannot also carry out the collection of bets simply by virtue of the aforementioned police license, but must be in possession of the appropriate and specific concession for the exercise and collection of bets issued by the competent AAMS.
Furthermore, as we have seen, the aforementioned Central Administration maintains that: "...in the premises where the betting activity is carried out, amusement machines can be installed only if the entrepreneur is in possession of the police license referred to in art. 88".
Dwelling on this statement, it emerges that it appears more as a mere statement of fact than a real normative interpretation!
Indeed, it is clear that:
the collection of bets can be carried out only by virtue of the possession of the license pursuant to art. 88 TULPS which, moreover, is valid only if associated with the specific AAMS concession for the collection of bets;
if the owner of a place carries out the collection of bets as just clarified, the same will be able to proceed with the installation of any equipment AWP, certainly not by virtue of the art. 86 (because, as we have already highlighted, the license referred to in article 86, paragraph 3, is required only if the person does not have one of the other licenses referred to in the first two paragraphs of the same article, or the license referred to in art. 88 TULPS), but certainly due to the possession of the public safety license referred to in the same article 88.
The cited AAMS circular then continues, reaching the point of stating that: "The rule under comment, therefore, intended to predict an express sanction also for the possible installation or use of AWP devices in premises where bets are carried out, without the police authorization pursuant to art. 88 of the Tulps".
The unreasonableness of this ruling, which, moreover, goes beyond any interpretative canon, is quite evident!
Among the questions that are most relevant on this point, the clear violation of the principle of law according to which: "Ubi lex voluit dixit, ubi noluit tacuit” which, as is known, calls on the interpreter to abide by the text of the provision, i.e. not to deduce consequences from the legislative silence.
It is all too clear, in the legal field, that if a case in point has not been envisaged in a regulatory provision or a specific legal profile has not been analysed, it must be assumed that the legislator did not want to standardize it (defect of regulation) and that therefore it is not possible to proceed with extensive interpretations.
In this regard, then, for the sole purpose of underlining the importance of the general prohibition to expand, not even through interpretation, the meaning and content of the regulatory provisions, it is hardly necessary to recall art. 12, paragraph 1, of the pre-laws to the Civil Code establishes that "In applying the law, no other meaning can be attributed to it than that made clear by the proper meaning of the words according to their connection, and by the intention of the legislator.".
But let's see the question in more detail: the external circular is a very extensive interpretation of the central administration, structured as follows:
to accept bets, the license referred to in art. 88 TULPS and this, also according to the writer, is absolutely beyond doubt;
whoever accepts bets can install AWP gaming machines only in the presence of the police license referred to in the aforementioned art. 88; this is justified by the fact, according to the aforementioned AAMS, that "… the art. 86, in requesting the obligation of the license envisaged therein for the installation of the appliances in commercial establishments, refers to those other than businesses for which there is an obligation to obtain a license pursuant to art. 88. Nor could it be otherwise, given that allowing the installation of such devices in premises managed in violation of the TULPS rules, as well as being legally prohibited, would not even be logical or reasonable".
It is in this clarification that the unreasonableness of the assumption underlying the interpretation adopted lurks!
We have already clarified that the art. 86, paragraph 3, provides for the obligation to issue the specific police license (referred to therein) necessary, among other things, for the installation of the devices in question, only if the owner of the installation business does not already possess one of the (police) licenses provided for in the first two paragraphs of the same article, or pursuant to art. 88 TULPS.
Therefore it is completely illogical to point out, as the Administration bearing the practice note in question did, that whoever collects bets could not install AWP devices except by virtue of the license pursuant to art. 88, as the owner of the exercise – even if without the license pursuant to art. 88 for the collection of bets (for example, it is a CTD) – it could well already be in possession of one of the licenses referred to in the first two paragraphs of art. 86 cit., or having requested and obtained the release of the PS license pursuant to art. 86, paragraph 3, of the same Consolidated Law.
Moreover, this circumstance:
is expressly confirmed, as seen, by note no. 557/PAS.18063.12001(1) of 17 December 2008 and by Resolution no. 6513 of 26 June 2007, respectively issued by the Ministry of the Interior and by the Department of Economic Development, in which it was in fact clarified, in relation to the content of art. 86, paragraph 3, of the TULPS, which said PS license must be requested only by those who are not already in possession of one of the authorizations provided for by the first two paragraphs of the same article (including bars, restaurants, taverns and amusement arcades), or by the subsequent art. 88 (in particular, betting collection agencies);
is also indirectly reflected in the circumstance that the license pursuant to art. 88 TULPS can only be granted in favor of holders of specific ministerial concessions for the collection of bets and this circumstance, among others, was confirmed by the AAMS itself, with note no. 1789 of 16 June 2010, with which it was stated that the subjects awarded the specific concession, authorized to collect and operate the related games through agencies, shops and corner, as well as the persons appointed by the aforementioned, are the only subjects entitled to obtain the release of the license provided for by art. 88 of the TULPS.
By this meaning that, in the interpretation provided by the AAMS, the administrative sanction referred to in lett. f-bis) of the art. 110, paragraph 9, TULPS, would be (paradoxically) applicable to a subject, for whom the license pursuant to art. 88 cannot be issued (for example a CTD, as it does not possess the ministerial concession), and in clear violation of the provisions of art. 86 TULPS, according to which the gaming machines in question can be installed:
not only if the subject in question holds the license pursuant to art. 88 TULPS;
even in the presence of one of the two types of license referred to in the first two paragraphs of art. 86 of the same TULPS;
in extreme ratio, requesting the license referred to in paragraph 3 of the same art. 86.
- PROJECTED IMPACT
From the foregoing, numerous critical points emerge referring to the interpretation provided by the AAMS in the aforementioned circular.
As has also been highlighted, the AAMS provides a reconstruction as well as in clear violation of the provisions of art. 86 TULPS, even more extensive than the sanctioning rule summarized in the lett. f-bis) of paragraph 9 of art. 110 TULPS expanding its meaning and content in clear contrast with the principle of obligatory or specific nature of the administrative offence pursuant to art. 1, paragraph 2, of the law n. 689 of 24 November 1981, according to which "laws providing for administrative penalties apply only in cases and for the times considered in them".
In conclusion, what has been said in the circular in question regarding the temporary inapplicability of the aforementioned sanctions pending the outcome of the administrative dispute possibly triggered in relation to the issue of the 88 TULPS license submitted by the holder of a CTD to the competent Police Headquarters does not assume any relevance and this, evidently, due to the fact that the rule is inapplicable due to the aforementioned reasons of law and certainly not depending on any unfavorable decision by the judge a quo.
